Sunday Times 2
Breakdown in law and order: So, what do we do?
View(s):
The articles widely written on law and order in the Sunday Times (ST) have evoked responses in various ways. One is a venerable perceptive gentleman from Kurunegala. He asks: So, what do we do? The question is at once discerning and of concern. This question resounds to the tone of Poet TS Elliott who said: The end of all exploration is to arrive at the beginning. The question of the venerable gentleman, as to the poet, points then to the start, to the People. Some tentative ideas are here offered.
What do we do?
First thing is to do what is little and feasible. This means going back to the people as best as we may, somewhat away from the Legislature, the Executive and the Judiciary whose useful work does not take it back sufficiently to the people. A range of minor cases and disputes can be dealt with in resolution for law and order within the present law, as what we might do. There is law for this. Section 2 of the Criminal Procedure Code casts a police officer as a peace officer, whose duty is to keep the peace even by resolution of minor cases and disputes. Section 56 of the Police Ordinance casts the same duty on a police officer to keep the peace. In the same section the duty is cast on the police officer for prevention of crime in various ways, including through settlement of minor cases and disputes.
So, there is enough law, as it is, to answer the question: What do we do? There is also commonsense to do just the same. There is also experience of some initiative to act in this manner. The need then is the practice and policy to pursue this course of action: What do we do? There is no need for Police Reform; the only need then is to ‘inform’ policing and bring police action up to date to what we might do, direct to the people. There will be no objection to this course of action by courts and the judiciary, not by the AG and the prosecution, surely not by the public. The Bar Association of Sri Lanka may not like this, but even it would not object to fundamental rights action.
Keeping the peace, and prevention of crime, must, therefore, pursue — if silently without fanfare — the path of what Police may do. Resolution of minor cases and disputes helps law and order and serves to build confidence in the Criminal Justice System (CJS). It is self-evident, however, that this line of argument cannot extend to the serious crimes which cannot be settled inter partes and which are matters for the State.
‘What we will do’ and ‘what little Police may do’ are much constrained within the Criminal Justice System (CJS), as it is. Parliament and the Justice Ministry which prepares the legislation have been oriented only just to elite professional interests and not squarely to the people. With the Executive, its history is one of ‘interference’ for its own influence, not for the people. With the Judiciary, the problems and maladies recounted extensively before, hardly make for the interests of the people for law and order. The politician may experience some check on their influence peddling when others go direct to the people. Sections of the media will swing with the wind. Repetition of all this is, however, tiresome. For none of these organs of government is directly and straight to the interests of the people. Policing for law and order has nonetheless to steer around these gnarls and warts of the available CJS system.
At the core of the problem for law and order at the hands of the institutions is then that money has overtaken expense; power flows easily from money, leading later to finance which circles over the higher air the mere expense and the money attracted in dispute resolution and much else relentlessly involved in law and order. Expense, money, power and finance are near substituting for justice, morality, law and order. It is regretted that this short diagnosis of the problem may be rejected out of hand since it is embarrassing.
How far will his help?
In answer to what do we do is, then, the further question. Barely a brief answer is given here to the question of the venerable gentlemen: what do we do? How far will his help? This will take the matter a little forward. We have heard of slogans such as revamp, reform, restoration and other vacuous slogans headlined with ringing tones, hardly intelligent in meaning, if not calculated. The silent voice of dispute resolution in the community is only heard of differently. It is one ‘told’ only to the parties of the dispute, and from them to the community. It proceeds then in small doses. But then it surely grows, as evidenced in many a practical experience. This is a benign thought in which there is not even the little initial expense, surely not money over the initial cost and most certainly never ever reaching the realms of finance as described above. Police can, in the resolution of cases, also get the assistance of village priests and elders as in the old Gam Sabha mode. The suggestion made above will help even in graver cases, though copied from afar, as in Japan – see below.
What further can we do?
If this notion takes some root, means of resolving can be taken further. Thus, it is possible that even in some graver cases, resolution of those cases can be with lawyer representation on either side of the dispute. Still further it is conceivable that even the more serious indictable cases are dealt with at the intermediation of the AG with legal representation of the parties. There is precedent for this practice in Japan where it is known that about 90% of the cases are so determined and that only about 10% go to trial. The significance of this is the principle underlying representation; the objective is resolution.
The problem, however, is that in the long history of the process in this country, the principle of representation has got distorted due to extraneous influence. This refers to representation of the individual parties to the dispute as well as to the courts, the prosecution, and other CJS institutions, all of which are representatives of the generality of the people. But the principle of representation here has gone into a twist. Conflict even among the agencies within the CJS even sets in for the same reason. Discord within the CJS is driven by such considerations beyond justice, morality, law and order.
The seed of resolution as propounded above, must yet be planted; this is some answer to the question: What do we do? Do this little for a start and watch it meander through to the people.
(The writer is a Retired Senior Police Officer. He can be contacted at seneviratnetz@gmail.com TP 077 44 751 44)